FOCUS ON COMPLIANCE

Report Gathering Procedure Standard Operating Guideline EvidenceName

Sub Title for Gathering EvidenceReport

This project has been assisted by the New South Wales Government through its Environmental Trust

Document control
Title Guideline Number Evidence Gathering Guideline HCCREMS-01 To provide an organisational directive that establishes a standard course of action for the gathering of evidence to a standard suitable for use in enforcement action, i.e. admissible evidence.

Purpose

Effective date Review date Prepared by Reviewed by Authorised by

Note regarding this Guideline

This Guideline was originally prepared as a Standard Operating Procedure by HCCREMS. The original title of this document was Standard Operating Procedure Evidence Gathering. Upon advice from the Regional Compliance Network, at their May 2010 meeting, the document has been renamed and is being presented to councils as a Guideline rather than a SOP. Councils may wish to adopt the Guideline in its current form or utilise it as a SOP, depending on their individual systems and preferences.

Table of Contents

1 2 3

Introduction ................................................................................................ - 1 The role of evidence .................................................................................. - 4 Planning and preparation ........................................................................... - 6 3.1 3.2 3.3 Plan the investigation ..................................................................... - 6 Input from Councils legal team ...................................................... - 7 Managing the evidence .................................................................. - 7 3.3.1 Set up an evidence register ................................................ - 7 3.3.2 Evidence handling and storage ........................................... - 8 3.4 3.5 3.6 3.7 Check delegations.......................................................................... - 9 Essential equipment ..................................................................... - 10 Occupational health and safety .................................................... - 10 Managing language and disabilities issues ................................... - 10 -

Gathering the evidence ............................................................................ - 12 4.1 4.2 Entering and inspecting premises ................................................ - 12 Requirement to either warn or caution before questioning ............ - 12 4.2.1 Privilege against self incrimination (POEO Act & EP&A Act)- 14 4.2.2 Warnings and cautions in the context of civil enforcement action ......................................................................................... - 14 4.3 4.4 Requiring information and records to be provided (POEO Act) ..... - 15 Contemporaneous notes .............................................................. - 17 4.4.1 Official notebooks ............................................................. - 17 4.5 4.6 Witness statements ...................................................................... - 19 Formal interviews ......................................................................... - 20 4.6.1 Audio recordings of interviews .......................................... - 21 -

4.6.2 The actual interview .......................................................... - 22 4.7 Documentary evidence................................................................. - 24 4.7.1 Photographs & video......................................................... - 24 4.8 Material evidence ......................................................................... - 25 4.8.1 Samples and measurements ............................................ - 25 4.8.2 Seizing items and equipment ............................................ - 26 4.9 5 Expert opinion .............................................................................. - 27 -

References .............................................................................................. - 28 Types of Evidence ........................................................................ - 29 Investigation Plan Template ......................................................... - 32 Powers of Entry ............................................................................ - 36 Warning Script POEO Act & EP&A Act...................................... - 40 Electronic Storage of Photographic Evidence .............................. - 42 -

Appendix A Appendix B Appendix C Appendix D Appendix E

1 Introduction

This Evidence Gathering Guideline provides guidance to Council officers on how to gather evidence on matters for which they have regulatory responsibility. It is applicable to the majority of local government enforcement activities and relevant legislation and provides an organisational directive that establishes a standard course of action for the gathering of evidence. The Evidence Gathering Guideline seeks to ensure that Council enforcement activities are carried out consistently and without bias, as is required under the Local Government Act 1993. Adherence to the Evidence Gathering Guideline will reduce the risk of enforcement action failing due to either incomplete evidence or evidence that has not been gathered in accordance with the necessary evidentiary standard for use in criminal or civil proceedings. The principal statutes considered in the development of the Evidence Gathering Guideline are: Local Government Act 1993 & Regulations (LG Act) Environmental Planning and Assessment Act 1979 & Regulation (EP&A Act) Protection of the Environment Operations Act 1997 & Regulations (POEO Act) Public Health Act 1991 & Regulations Noxious Weeds Act 1993 Food Act 2003 & Regulations (Food Act) Companion Animals Act 1998 & Regulations Impounding Act 1993 & Regulations Swimming Pools Act 1993

The Evidence Act 1995 and Interpretations Act 1987 are also important statutes in determining the admissibility of evidence and interpreting documents or provisions which are to be relied upon in any court proceedings. The Evidence Gathering Guideline does not address: The much broader issue of enforcement policy and procedure. It is outside the scope of the Evidence Gathering Guideline to provide detailed guidance on whether or not enforcement action should be undertaken and if so what types of enforcement methods are available and appropriate in different circumstances. In this regard, officers are referred to Councils other compliance and enforcement policies and

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SOPs for guidance on when and how enforcement action should be used. Detailed guidance on overall case management systems. This Guideline deals with planning, gathering and management of evidence within an investigation. For more detailed guidance on overall case management, officers are referred to Councils policies, SOPs and relevant guidelines. Post investigation matters such as preparing a brief for Councils legal team. Technical procedures already described in methods or procedural documents (e.g. water sampling).

Figure 1 is a summary of this Evidence Gathering Guideline. It shows the steps in the process and what sections of this document include further detail about each step.

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Figure 1 Summary of the Evidence Gathering Guideline

Plan the investigation (3.1) Refer plan to legal team if required (Section 3.2) Set up evidence register (3.3.1)

Evidence Handling and Storage (3.3.2)

Check delegations (3.4)

Identify essential equipment (3.5) Enter premises (4.1) Check off OH&S requirements (3.6) Use appropriate cautions or warnings (4.2)

Consider language and disability issues (3.7)

Conduct Questioning and Investigations (Section 4)

Review of evidence by legal team to determine if further evidence needed to meet required standard of proof

Gather Evidence: Direct (Notebooks) (4.4) Witness Statements (4.5) Formal Interview (4.6) Photographs and Video (4.7.1) - Samples and Measurements (4.8.1) - Seize Items and Equipment (4.8.2) - Seek Expert Opinion (4.9) -

Build Case (refer to Enforcement Guideline)

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2 The role of evidence

This Guideline seeks to assist authorised officers in ensuring that evidence collected during preliminary and detailed investigations is sufficient to enable Council to successfully utilise the following types of enforcement methods in accordance with Councils adopted Enforcement Policy: Orders and Notices; Penalty Infringement Notices (PINs); and Court proceedings. Following investigations and before a decision is made to undertake any of the above formal enforcement methods, two threshold questions need to be answered in the affirmative: 1. Has the appropriate and correct notice/order recipient or liable defendant been identified? 2. Is the available admissible evidence capable of establishing each element of the offence or breach, either on the balance of probabilities (civil) or beyond reasonable doubt (criminal)?

Guiding principles evidence gathering

for

Relevant - The focus of the investigation should be to gather evidence that is relevant to the elements of the possible offence or breach. Relevant evidence is evidence which can assist in determining the existence of a fact in issue in the matter under investigation. Reliable evidence collected should enable confident conclusions to be drawn. Evidence should be consistent, objective and where relevant, come from a person with particular expertise and experience. Fair - Treat suspects fairly and with professionalism and avoid behaviour which could be regarded as unfair or oppressive. Use only lawful and proper means to obtain evidence.

Orders, notices and PINs issued by Council officers are subject to appeal. Therefore, it is prudent for Council officers to ensure that they have sufficient evidence to be able to defend the chosen method of enforcement action, before commencing the action. Evidence is used in court proceedings to prove, or disprove the elements of a particular offence or breach. The standard of proof which is required to be achieved depends upon whether the proceedings are civil or criminal in nature. Criminal proceedings require a higher standard of proof because of the potentially serious consequences of a conviction. In criminal proceedings, the evidence must prove each element of the offence, beyond reasonable doubt. In civil proceedings, each element of the offence must be proved on the balance of probabilities. The standard of proof required is dependent on the nature of the offence and the legislation under which proceedings are taken. Regardless of the standard of proof required, there is a need to gather good quality evidence and this Guideline is applicable to evidence gathering for both criminal and civil proceedings. In either case, there may be a need to gather additional evidence as proceedings progress.

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Evidence consists of documents, exhibits/things, expert opinion, affidavits and oral testimony. Appendix A provides more details of the different types of evidence. Evidence is presented to the court in different ways, depending upon the nature of the proceedings and or whether the proceedings are taking place in a local court, or a court of higher jurisdiction such as the New South Wales Land & Environment Court (L&E Court). For example, in a local court criminal prosecution, witness evidence is generally introduced by way of oral testimony. In the L&E Court, whether in the context of civil enforcement or criminal enforcement proceedings, witness evidence is given by way of a written, sworn and witnessed affidavit and often also oral testimony. Ultimately it is the job of the Council officer to gather admissible evidence. Should proceedings be commenced, Councils legal team will then assist Council to determine the type of proceedings which should be pursued (criminal or civil) and advise on the appropriate way of presenting admissible evidence to the court.

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3 Planning and preparation

3.1 Plan the investigation

Following a preliminary investigation, it is very helpful to prepare a detailed investigation plan prior to gathering further evidence. The elements of the offence should form the foundation for the investigation plan. The evidence sought to be gathered must prove or disprove the existence of the elements of the offence.

No time to prepare a written plan? Take some time, most likely while sitting in the car outside the premises, to write down a few notes against these headings and develop a preliminary investigation plan.

An Investigation Plan template is provided in Appendix B. The investigation plan must as a minimum identify the allegation, the objectives of the investigation, the possible offence/s, the elements/proofs of the offence/s, and the avenues of inquiry. It should also address the resource needs of the investigation, such as what specialist advice might be required. For larger investigations, particularly those that involve criminal proceedings or significant breaches for which expensive remedial action will be required, officers should consider seeking input from Councils legal team when preparing the investigations plan. The Plan can be changed as the investigation evolves. Case Study 1 below provides a short example of the typical elements of the offence that would arise in relation to an illegal development matter. Case Study 1 Criminal prosecution in respect of alterations and additions made to a dwelling house without approval: offence against section 125(1) EP&A Act 1979. Section 125(1) (relevantly) provides: Where any matter or thing is by or under this Actforbidden to be done, and that matter or thing if so forbidden to be done is done, a person offending against that prohibition shall be guilty of an offence against this Act. If development is characterised as development that needs consent, and existing use rights do not apply, section 76A(1) creates the matter or thing forbidden to be done: The elements of the offence under section 76A(1) which need to be proved by the conclusion of the investigation are: 1. An Environmental Planning Instrument (usually an LEP) provides that [specified development] may not be carried out except with development consent identify the relevant provision/s. 2. A person

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3. Carried out the development on land to which the provision applies 4. Without such a consent having been obtained, OR, the development has not been carried out in accordance with the consent and the instrument. Depending on the nature of the investigation additional resources, primarily persons with specific expertise, may be required. In the example of noise, many Councils own a Type A Sound Level Meter but often only 1 - 2 officers will have sufficient training and experience to be able to give expert testimony in court. Due to normal operational and leave requirements these officers may not be available at the time of an investigation. Notwithstanding any specific investigation, Councils should undertake an analysis of their workforce relative to enforcement responsibilities to better understand their strengths and weaknesses. Contingencies should be developed to enable the Council to progress an investigation should particular competencies be in short supply or simply not available in house. Options include resource sharing arrangements with neighbouring Councils or arrangements with locally based consultants or contractors. 3.2 Input from Councils legal team

The decision to involve or not involve Councils legal team early in an investigation is a matter of policy for individual Councils. While this Evidence Gathering Guideline provides instruction on how to gather evidence it is not a replacement for quality legal advice from the qualified individuals who will be progressing the matter through to the courts. For large and complex investigations it is recommended that officers engage with Councils legal team early on in the investigation. A good place to start would be immediately after the development of a draft investigation plan and this would enable the legal team to focus their efforts immediately onto the key matters of law. 3.3 Managing the evidence 3.3.1 Set up an evidence register

Investigations generate large quantities of documents and information, and in a variety of formats. The preparation of the investigation plan will give an officer a preliminary indication of the types of evidence the investigation will generate and the final format (physical document, notebook observations, photos, samples, seized equipment.). An evidence register (in word or Excel is adequate) should be created as soon as practicable to help manage the evidence that will be gathered during an investigation. The Evidence Register provides a detailed record of each piece of evidence, including detail of its

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origins and storage location. It can be an extension of the investigation plan. An example is provided in Table 1 below.
Table 1 Example evidence register

Unique identifier*

Title

Description

Date Storage collected & location who by Photos on server (location) Hardcopy on file (location) DCs notebook

Quickspray Quickspray.air.dc 001 Photos (16 July 2009)

Photographs of emissions leaving boundary of premises

16 July 2009 M. Smith

Jack Quickspray.air.dc 002 Thomson Interview

Interview with business owner

17 Jul 2009 M. Smith

Hardcopy on file (location) Electronic on server (location)

Attention to evidence management at the commencement of the investigation will not only result in a better quality investigation but also save significant time at the post investigation phase when an officer is preparing a brief for Councils legal team. 3.3.2 Evidence handling and storage

Significant resources are invested in gathering evidence and it is therefore critical all steps in the evidence chain can be clearly demonstrated and defended if challenged in a court. In practice this means that the court is satisfied that evidence once gathered has not been tampered with or altered in any way prior to being presented to the court. Table 2 summarises the recommended handling and storage procedures for the main evidence types and materials. A cross reference to the relevant section in the Guideline where the gathering procedures are detailed is also provided where appropriate. Although many councils have electronic document storage systems these should be considered to be a back up for the storage of documentary evidence. The original hard copies of documents often need to be kept for use as evidence as these cannot easily be tampered with.

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Table 2 Summary of evidence handling and storage procedures

Evidence type

Recommended handling and storage Ensure relevant sampling procedures are followed. Be able to account for the location of samples from time of sampling to delivery at laboratory (chain of custody) Minimise the time from sampling to delivery to laboratory

Section of Guideline 4.8

Environmental and biological samples

Following correct procedures for use Official notebook Keep your notebook safe at all times Return your notebook once completed Witness statements Maintain electronic copies on server in both word processing and PDF formats. Keep the original signed hardcopy on file, along with a copy.

4.4

4.5

Save copy on server of audio file on server Formal Copy audio files to CD and attach to the interviews hardcopy file associated with the electronic audio investigation. or video files Documentation Expert opinion Formal interviews paper copies Electronic documentation and databases Make copies and keep originals secure on the investigation file See witness statements See witness statements Save copy on server If possible print out hard copy and place on the investigation file At conclusion of investigation burn all files to CD and attach copy to investigation file.

4.6

4.7 4.9 4.6

4.3

3.4

Check delegations

Some Councils will manage delegations through a position title, others by specifically naming a staff member. These delegations are critical to entering premises, asking questions and gathering evidence. Officers must ensure that they have the necessary delegations to undertake the particular enforcement activity through which evidence will be gathered. If there is a

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lead officer for the investigation they should also check the delegations of other officers likely to be involved. 3.5 Essential equipment

Equipment requirements will vary with each investigation. A list of core equipment requirements are provided below. Authorised officers identification card; Camera; Official notebook; Safety boots and hardhat; Written authority to enter land (as per relevant Acts); and List of delegations. Official Notebooks
Official notebooks are issued by the NSW State Debt Recovery Office and are used to document contemporaneous notes during an investigation. They are controlled documents issued to Councils and then to specific officers.

3.6

Occupational health and safety

All evidence gathering procedures must be undertaken in accordance with Councils occupational health and safety policies and procedures. Some issues characteristic of compliance investigations are discussed below. Planned investigations should be conducted in pairs. This not only increases the level of safety for investigating officers but enables corroboration of observations and evidence. Where officers encounter direct physical abuse or threats they should withdraw from the scene or premises. There may also be times when substances at or near a particular premises present a potential health risk e.g. toxic substances, chemicals or asbestos. Carrying and using appropriate Personal Protective Equipment (PPE) will help mitigate the risk. In some circumstances other government agencies involvement may be required e.g. HAZMAT

3.7

Managing language and disabilities issues

If the Council has some previous dealings with the premises and operators consider if there are likely to be language and disability issues. Use an interpreter if the person (suspect or witness) being interviewed: Is unable to communicate in English;

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Has a limited understanding of English; Is more comfortable communicating in a language other than English; and Is deaf, hearing impaired or speaking impaired.

Use properly accredited professionals. Do not use someone known to the suspect or a member of the suspects family to interpret during an interview. Interpreters can be arranged through the Community Relations Commission (CRC) on phone: 1300 651 500 (24 hours a day). If someone is hearing or speech impaired do not interview them without an interpreter unless they agree in writing. Conduct the interview by showing them written or typed questions and allowing them to write or type their answers. Ask for the interpreter's identification card or letter of authority issued by the CRC unless the CRC advised you at the time of the booking the interpreter would not have identification. Conduct a pre-interview session with the interpreter and: Brief them about the matter being investigated; Tell them the objectives of the interview; Find out cultural background information from them; and Decide the method of interpreting, e.g.: simultaneous or consecutive.

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4
4.1

Gathering the evidence

Entering and inspecting premises

Before entering any premises, an officer must ensure that they are properly authorised and empowered to do so in the circumstances, under the relevant Act. The risk of not doing so is that Council may be stopped from relying upon the evidence collected during the entry. The powers of entry for the main Acts under which Councils undertake enforcement activities are summarised in Appendix C. Officers are encouraged to have a thorough knowledge of where their powers of entry are derived and limitations on those powers. Officers should also familiarise themselves with the limitations on their powers to do certain things whilst inspecting premises, under each Act for which they are authorised officers. 4.2 Requirement to either warn or caution before questioning

Prior to the commencement of an interview or the questioning of any person suspected of having information relevant to your investigation, it is important that you issue the person with either a warning or caution. Failure to warn or caution, when exercising functions under certain Acts, may result in the evidence collected from that person being inadmissible as evidence against that person in criminal proceedings. Where there is power to require answers to questions - warn POEO Act & EP&A Act - Section 203 of the POEO Act and section 118BA of the EP&A Act provide authorised officers with the power to require answers to questions. These Acts specify the nature of the warning that must be given when questioning a person who is reasonably suspected of having knowledge of a matter which is under investigation under these Acts. The warnings which must be used when conducting interviews under the POEO Act and EP&A Act are provided in the script at Appendix D. It is an offence under the POEO Act and EP&A Act for a person, who an authorised officer reasonably suspects of having information or knowledge relevant to the investigation of a pollution incident/illegal works/other offence/breach, to refuse to answer questions in relation to that incident/those works, providing that the person was warned on that occasion that failure to comply is an offence. The risk of self incrimination is not a valid excuse for refusing to answer a question put by an authorised officer. However, the person must be told that they may object to furnishing the information or giving the answer on the ground that it might incriminate the person. This is explained further in Section 4.2.1 below. It is very important that the warnings provided in Appendix D be given at the commencement of any interview (whether on-site or formal) with a person who an authorised officer suspects on reasonable grounds to have knowledge of matters in

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respect of which information is reasonably required to enable the authorised officer/Council to exercise any of its functions under the POEO Act or EP&A Act. This includes interviews with company representatives who are nominated to answer questions on behalf of the company in response to a section 203(2) (POEO Act) or 118BA(3) (EP& A Act) notice. Food Act Section 37(1)(o) of the Food Act provides authorised officers with the power to require answers to questions, but does not provide for the person questioned to object on grounds of self-incrimination. The only warning required to be issued under this Act is to the following effect: I am an authorised officer under the Food Act 2003. I require you to answer my questions. Your refusal to answer my questions [or failure to provide me with requested records, documents or items for examination] may constitute an offence. Do you understand? Failure to issue this warning will not result in evidence collected being inadmissible. As provided by section 40(2) of the Food Act, it would simply mean that the person could not be prosecuted for refusing to answer your questions or provide you with the requested records, documents or items. In all other cases - caution Other Acts from which councils derive their enforcement powers, do not give authorised officers the power to require answers to questions and are silent on the nature of warnings that must be given to those reasonably suspected of having knowledge of a matter under investigation. When exercising enforcement functions under these Acts the following caution must be issued prior to commencing an interview or questioning: You do not have to say or do anything but anything you do say or do may be used in evidence. Do you understand?1 Companion Animals Act - The Companion Animals Act is an example of an Act which falls into this category. When questioning people in relation to suspected offences under this Act, the conventional Evidence Act caution set out above must first be issued. Under this Act people are under no legal obligation to respond to questions and if they are not appropriately cautioned, any information they choose to provide is likely to be inadmissible as evidence against that person in criminal proceedings. The one exception under the Companion Animals Act is provided by section 69G(1). An authorised officer who reasonably suspects a person of having committed an offence under the Companion Animals Act (or the regulations) may require the person to state his or her full name and residential address. Failure to comply with this requirement or the provision of a false answer constitutes an offence provided that the following warning was issued at the time:

Evidence Act 1995: Section 139.

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I require you to state with your full name and residential address. Your failure to provide your correct full name and residential address is an offence under the Companion Animals Act. Do you understand? LG Act Although section 192(d) provides authorised officers with the power to require answers to questions, refusal to answer an authorised officers questions when that officer is exercising functions under the LG Act does not constitute an offence except in respect of very limited lines of questioning (see sections 662, 663 and 680). It may be that section 192(d) provides an exception to the requirement to issue the Evidence Act caution before questioning. However until there is authority on this issue from the courts, it is recommended that a caution be issued before questioning any person during an inspection of a premises authorised under the LG Act.

4.2.1

Privilege against self incrimination (POEO Act & EP&A Act)

When an officer is using his or her powers under the POEO Act or EP&A Act, a person cannot refrain from answering a question on the ground that doing so may incriminate the person or make the person liable to a penalty. However, a person can object on that ground to giving the answer. If the person does object or is not told that he or she may object at the time of answering, then the answers he or she does give will not be admissible in evidence against the person. However those answers objected to may nevertheless be used to obtain further information against that person via other means, which will be admissible. For example, once the authorised officer is given the name of the contractor who the landowner engaged to do the work, that contractor can then be interviewed to obtain evidence against the landowner. In addition, evidence given but objected to by one person may be used in evidence against other people responsible for the offence. It is worth noting that the privilege against self incrimination is only available for individuals, and only if they object at the time of answering the question or providing the information. The privilege does not apply to corporations. Answers and information provided by a corporations nominated representative bind the corporation even if the individual claims the privilege for himself/herself at the time of providing the information or answer. Furthermore, the privilege only applies to information and answers. It does not apply to records.

4.2.2

Warnings and cautions in the context of civil enforcement action

It is recommended that authorised officers issue a warning or caution (depending upon which particular Act their enforcement powers are being derived from) at the commencement of every interview, irrespective of whether the officer is contemplating at the time of the interview, civil or criminal enforcement action or perhaps no formal action at all. This will ensure that Councils enforcement options remain open throughout the course of an investigation and that an informed decision about the most

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appropriate course can be made, in accordance with Councils enforcement policy, once all evidence has been collected. That said, it is worth noting that when exercising enforcement functions under the POEO Act or EP&A Act, only the first part of the warning outlined in Appendix D is relevant if Council has already decided that remedial (civil enforcement proceedings) rather than punitive action (criminal prosecution) will be taken. That is, paragraphs 5 and 6 of the script need not be used where Council intends to, for example, issue an order under the EP&A Act to require certain works to be done, or to seek orders of the L&E Court requiring certain remedial works to be done. Warnings 2, 3 and 4 of the script, while not necessary to ensure the admissibility of evidence collected in civil proceedings, should nevertheless be used as a matter of course at the commencement of all interviews under the POEO Act and EP&A Act because: a) they are likely to be useful in encouraging the interviewee to co-operate, answer your questions and to do so truthfully; and b) if these warnings are not given, Council will not be in a position to issue a PIN or otherwise prosecute for failure to answer the questions or the provision of false or misleading information.

4.3

Requiring information and records to be provided (POEO Act)

Section 193 of the POEO Act provides a very useful tool for gathering evidence in respect of pollution incidents. The section enables authorised council officers to issue a written notice requiring a person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the functions of the Council under the POEO Act. A section 193 notice should include the following warning in accordance with the requirements of section 212 of the POEO Act: Warning This warning is given for the purposes of section 212 of the POEO Act. It is an offence under the POEO Act to fail to comply with this notice unless you have a lawful excuse for not complying. It is also an offence to provide information or do any other thing in purported compliance with this notice that you know is false or misleading in a material respect. The fact that the information, records or answers to the questions listed above might incriminate you or make you liable to a penalty does not excuse you from having to comply with this notice. However, if you are a person (that is, an individual rather than, for example, a company or other incorporated body) any information provided or answer given by you is not admissible in evidence in criminal proceedings against you personally (except proceedings for an offence under Chapter 7 of the POEO Act) if you object at the time of providing the information or answer, on the ground that it might incriminate you. This does not apply to records.

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It should be noted that section 212(4) of the POEO Act provides that any record furnished by a person in compliance with a requirement under a section 193 notice is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person. In cases where written answers to questions, information and records are all required from one person in relation to a pollution incident, a single notice can be issued to that person under sections 203(1) and 193.

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4.4

Contemporaneous notes

Contemporaneous notes are used to make a record of a conversation or an event at the time it occurred or shortly after.

Remember

If it is worth remembering, it In the case of a conversation, notes are used to is worth making a note! record a conversation between an authorised officer and at least one other person. That is, they are an officers notes made during the course of the discussion. Notes may be cryptic or key-word in format but should be legible in case they are required as evidence. Notes may also be made immediately after a meeting or discussion. Notes may also be used to record details of an event. If the notes are to be accepted as a valid record of what occurred, then they should be made as soon as possible after the meeting or discussion while everything is fresh in the memory of the officer. Taking contemporaneous notes is one of the most important aspects of any investigation, primarily because it increases the credibility of an officers testimony if they can accurately recall the events, observations and discussions that occurred at or around the time of an alleged offence. 4.4.1 Official notebooks
NOTEBOOKS DOs and DONTs DO take your notebook with you use a pen write legibly rule a line through errors initial errors and each page get witnesses to adopt notes. keep notebook for court Use both sides of pages to ensure there is no room for insertions.

a)

Obtaining and using official notebooks

Officers issued with a Notebook will immediately enter their name and title in the notebook by inscribing these details on the inside cover in the space provided. Officers must carry their official notebooks on their person at all times. Official notebooks are to be used to record particulars relating to possible offences against the legislation administered. The notebooks must not be used to record private notes or memoranda. If an officer is not carrying their official notebook while conducting an investigation a notepad can be used, provided they follow the methods as described for the official notebook. When returning to the office officers should then

DO NOT remove any pages erase entries leave blank spaces use pencil use it for personal notes

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convert the notes into a file note for proper storage. Ensure notes are then stored securely within Councils records management system. b) Storage of completed Official Notebooks

Completed Notebooks must be signed and dated on the inside cover in the space provided and returned to the relevant Manager within Council designated responsible for the custody of such books and apply for the issue of a fresh notebook. Completed Notebooks shall be kept in safe custody by the Council and shall not be disposed of without the consent in writing of Records Management. c) Information to be recorded

Notebooks are to be used to record the following information in relation to a potential offence:

Time and date of entry in notebook; Time and date of investigation; Precise location of the scene; Record direct conversations; Full particulars (names, addresses, telephone numbers, role on the site or relationship with other witnesses) of all witnesses; Description of site (evidence of land uses, structures, watercourses, works being undertaken); and Number and descriptions of person(s) present.

d)

Entries in Official Notebooks All entries must be made neatly and legible in ink/ball point pen; Notes may be abbreviated, but in all cases proper names and address must be written out in full. Avoid shorthand because witness/suspect are not going to sign something they cannot read and/or understand; Every entry must show the time and date at which it is made; All entries in the notebook must be inserted in chronological order; A line must be ruled immediately under every entry; The next entry must commence immediately below; Pages must not be torn out, nor inserted; Notes must not be erased. If any alteration is necessary then the proper procedure is to rule a line through the original notes. Do not use liquid paper;

Officers must observe the following guidelines in making notes;

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If an error occurs when recording conversation from a suspect a line should be drawn through the mistake and the witness/suspect asked to initial the alteration; Any alteration should still allow for the original note to be in a completely legible form; All entries in a law enforcement notebook are to be made in the handwriting of the Service officer to whom the notebook has been issued; and Where one officer records information and/or conversation and another officer is involved that other officer should be given the opportunity to endorse the notes by checking the notes a short time after they have been recorded and then initial them at the end of the entry. This adoption allows the other witness to use the notes as if they were his own. Witness statements

4.5

Witness statements are useful for gathering evidence for Local Court prosecutions. The purpose of a witness statement is to: Provide information about the evidence and whether that evidence supports an enforcement action; Guide the prosecutor if the matter goes to court. The statement provides the prosecutor with the information to lead the evidence in chief; and May provide a reference for the witness to refresh their memory before entering court.

Types of witnesses and how to approach them

Impartial witness- Nothing to gain and nothing to lose. They are helping you with a sense of civic duty. There is an absence of any vested interest in the outcome. Biased witness - Has a definite interest in the outcome and colours their account of events accordingly. Remember to check all witness versions with the known facts. Unfriendly witness - Hostile toward the investigator. May have relatives or friends involved. May deliberately try to mislead the investigator. You should remember to keep the facts of the matter confidential and not reveal them to the unfriendly witness. Untruthful witness - The untruthful witness may seem cooperative. There are those who invent facts in an attempt to please the investigator. Some untruthful witnesses are motivated by bias and deliberately mislead the investigator. If an officer thinks that a witness is being untruthful or if they claim to have no knowledge of the matter under investigation, take a statement from them to that effect. This reduces their value as a witness for the defence. Nervous witness - Adopt a caring and confident approach with the nervous witness. You need to gain their confidence.

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The steps to follow when taking a witness statement are: Standard jurat Prepare a list of questions/issues; Ensure that the standard jurat is included at the commencement of the witness statement; Use appropriate warning or caution; Discuss the matter with the witness and get their full uninterrupted account; Identify the main points; Ask questions and clarify ambiguities; Visit the scene with the witness if practical; Place the witness evidence in logical order; Refrain from including hearsay; Use the exact words used by the witness; Where conversation occurred, quote exactly what was said, first person conversation; Produce exhibits; Read the statement over yourself and have the witness read it; Clarify any issues arising; Have the witness sign the statement on each page and date it; and Witness all signatures and initials.
Tips for using interpreters In the interview the officer should: Introduce themself and establish roles (including that of the interpreter); Seat the interpreter to one side Explain how the interview will be done (e.g.: interpreter is to use precise words used by both Council officer and suspect, if suspect asks a question the interpreter is to repeat that to Council officer and not answer it, no advice is to be given to suspect by interpreter); Maintain eye contact with the person, if culturally appropriate; Speak in the first person; Speak slowly, naturally, using short sentences, and avoid using jargon; If control slips in the interview, stop it immediately and re-state the ground rules; Summarise periodically to ensure you and the person share the same understanding; Have the interpreter read the record of the interview to the person and sign it This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true

4.6

Formal interviews

Where a person is suspected of having committed a criminal offence for which Council is considering commencing a criminal prosecution, it is prudent for a formal, recorded interview to be carried out with the likely defendant and other relevant witnesses, in addition to any interviews which may have already been carried out on site. This is particularly so if the gravity of the offence is

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considered serious and/or Councils legal advisers consider that further evidence is required. Admissions made by the suspect will not be admissible as evidence against them in criminal proceedings unless the applicable warning or caution was given at the commencement of the interview. In this regard, please refer to section 4.2. 4.6.1 Audio recordings of interviews

The powers to record interviews are contained in each Act which gives authorised officers enforcement powers. For example, section 118BA of the EP&A Act provides:
(5) An authorised person may cause any questions and answers to questions given

under this section to be recorded if the authorised person has informed the person who is to be questioned that the record is to be made. (6) A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised person. (7) A copy of any such record must be provided by the authorised person to the person who is questioned as soon as practicable after it is made. All people involved in the audio recording must be informed that the interview will be recorded. Full details about the interview must be recorded at the commencement (i.e. date, time, location) and all persons present clearly identified.

a)

Triple deck recording devices

If using a triple deck audio tape recorder (as opposed to a digital cd/dvd recorder) the following procedures are recommended for handling the tapes. The triple deck will record 3 identical original tapes of the interview simultaneously. These tapes should be dealt with at the conclusion of the interview as follows: Master copy is sealed in the presence of the suspect and signed. It should be secured back at the office so that it can be produced in evidence if necessary Working copy is retained by the investigator. It is yours to use, to make other copies from for transcriptions services etc. Suspect copy this is given to the suspect immediately after the conclusion of the interview. Obtain a signed receipt for it in your official notebook.

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b)

Digital recording devices

More commonly officers will use a digital recording device that records the conversation in a digital format for playback. A copy of the recorded interview should be made on a disk and provided to the interviewee as soon as is practicable after the interview. 4.6.2 c) The actual interview

Preliminary questions

The following matters should be told to the interviewee prior to commencing the interview. That is, prior to turning on any equipment to record the interview. I am making inquiries in relation to (outline the allegation) I intend to ask you further questions about this matter. Issue applicable warnings or caution My questions and any answers given by you will be audio recorded as the interview takes place. Do you understand that? At the conclusion of the interview (or within X days of this interview) you will be given a complete copy of the audio recording. At the conclusion of the interview the copies of the audio recording will be singed in your presence. Do you understand that?

d)

Questions to be asked during the interview This is an audio recorded interview between [your name] and [interviewees name] at [location] on [date]. The time is now [state the time] For the purpose of voice identification Ill get each person present to state their full name. Mr/Mrs/Ms [suspects name] Do you agree that apart from those persons who have just identified themselves, there are no other persons present in this room? As I have already explained to you we are making inquiries into [outline allegation very briefly]. Do you agree that I also told you that my questions and any answers that you gave would be audio recorded as the interview takes place?

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Do you agree that I also told you that at the conclusion of the interview all copies of the audio recording would be signed in your presence? Do you agree that I also told you that you would be given a complete copy of the audio recording of the interview? For the purpose of this record of interview what is your full name, date of birth and address? Proceed with prepared questions from this point. Including Employment details; Introduce the incident if necessary (time, date, location); Get the interviewee to give their version of events (tell me what happened)?; and Explore the detail (who, what, where, when, how, why).

e)

Guide to issues to cover in body of interview

Prepare a list of questions or issues to be covered during the interview in a logical sequence. This should include: Personal details of the interviewee; Employment details, including who they were employed by, what their role was, how long they did it for and between what dates, supervisors details; Identify the company involved in the matter under investigation; Incident time, date and location; The interviewees version of events tell me what happened; Explore the details with the interviewee, who, what, where, when, how, why?; Clarify technical jargon; Clarify exactly who did what; Seek an explanation of systems, procedures in place; Explore the role their supervisor played if any; Explore information provided to them by their employee, training, instructions etc.; and Ask about any previous incidents, e.g. similar events, penalty notices, prosecutions.

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f)

Concluding questions

These questions should be asked at the end of the interview just before you turn the recording device off. Is there anything further that you wish to say about this matter?; Are the answers you have given as recorded in this interview true and correct?; The time is now [state time] INTERVIEW CONCLUDED.

4.7

Documentary evidence

Typical documentation that may be collected as evidence includes, but is not limited to: Business registration details; Contracts, receipts and correspondence between suppliers and purchasers; Waste collection and disposal receipts/dockets; and Electronic media containing information, images and video.

Where possible take original documents rather than photocopies. Where this is not possible view the originals and ensure the copies are accurate, clear and not missing any critical information. Ensure that a receipt is provided to the person from whom the document is taken. If original documentation is obtained as part of an investigation make a working copy as soon as practicable and store the original in a secure location. Electronic copies should be kept as a backup but original documents need to be kept.

4.7.1 a)

Photographs & video

Check your camera Are the batteries charged and/or do you have spares with you? Is there adequate space on the memory card? Are the date and time settings correct?

Photographs

Photographs should be taken to assist with describing a particular scene or setting, and describing particular proofs or elements of the offence. Examples include:

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Methods of food storage and/or handling Visible pollution at or adjacent to a particular premises The state or condition of the land or environment that has resulted from a particular action, e.g. cleared land. The state or condition of plant and equipment that may have contributed to a particular pollution event occurring.

A procedure for recording and storage of digital photographs is at Appendix E. b) Video

Video evidence may be gathered for the same reasons as photographic evidence. Record the date, time and location verbally as part of the audio recording.

4.8

Material evidence

Material evidence is objects, other than documents, which are produced for inspection by a court. This, when available, is usually a reliable form of evidence because it generally does not require testimony or inference. Unless its genuineness is in dispute, the thing speaks for itself.
Make detailed notes When taking samples and measurements be sure to document what you do in your official notebook together with the exact date and time of when you did it.

4.8.1

Samples and measurements

Specific powers to take samples and measurements (and do other things) are provided in the POEO Act, EP&A Act, Food Act and LG Act. Authorised officers should ensure that they are familiar with the different powers available under each of the Acts for which they have delegated authority.

There are a number of specific methods and procedures for the taking of samples and measurements, be they food, biological, environmental or material (waste). There are however a number of core procedures and practices that should be adhered to so as to ensure that samples and measurements are taken to an evidentiary standard, and importantly defendable in a court. a) Competency

Be detailed and clearly demonstrate how you have followed the correct procedures.

An officer will need to satisfy the court that they are competent in a particular sampling or measurement procedure. Competency can be shown usually through experience and qualifications.

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b)

Testing equipment

All equipment must be of a type and standard acceptable to a court. This will vary depending on the types of equipment. Maintenance and calibration schedules must be maintained, including field calibrations. c) Containers and bags

A selection of sample containers and bags for the range of investigations officers are likely to encounter should be maintained either in the officer vehicles or in a secure location at the Council office. It is important Approved analysts that they are stored in a manner that prevents tampering by third parties, e.g. locked filing Under s262 of the POEO the NSW cabinet. d) Method
Environmental Protection Authority may appoint analysts for the purpose of the Act.

Approved or best practice methods should be used. e) Chain of custody

This essentially means that if samples are analysed by an EPA appointed analyst they can issue a certificate regarding their analysis which is admissible as evidence in court. If the analysis is not appointed under s262 then an affidavit is required with qualifications etc and attendance at court. The use of an EPA appointed analyst is a much simpler process. When planning to undertake an investigation DECC can be contacted to obtain a copy of their current appointed analysts.

Following the taking of a sample for laboratory analysis and testing should be managed within a strict chain of custody process to ensure that sample integrity is maintained and defendable. If applicable, ensure that you advise the laboratory that the samples may be used in Court procedures and therefore they should not be destroyed after analysis until express permission to do so is given by the person who delivered the sample to the laboratory.

4.8.2

Seizing items and equipment

Specific powers of seizure and provisions relating to the handling and return of seized items and animals are contained in the POEO Act (Part 7.4), Food Act (Part 4) and Companion Animals Act (Parts 5, 7 and 7A). Prior to seizing particular items, animals or equipment the officer, in addition to identifying the power of seizure available under the relevant Act, should consider the practical aspects of item, animal or equipment seizure such as: How will it be transported?; Does it contain hazardous or toxic substance that will require particular safety precautions?;

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To where will it be taken?; and Can the security of the item once seized be assured?

A record of seizure should be created and a receipt prepared at the time or as soon as practicable thereafter. This receipt should include the following: Date, time, place of seizure (or possession); Name of person providing the item; Name of owner; Name of person taking possession of the item; Warrant holder (if applicable); Full description of the item; and Full description of the location where the item was located prior to seizure or possession.

A record of the scene from where the item was seized should also be created, either in sketch or photographic form. 4.9 Expert opinion

Expert assistance may be used where the investigating officer(s) do not have necessary technical expertise on an issue that is critical to specific elements of an offence. Examples include: Environmental and biological chemistry Environmental noise and acoustics Land survey Environmental modelling Aerial photography interpretation Engineering

Expert evidence should be gathered and presented using the same procedure and format as for a normal witness statement. The expertise of a particular expert witness must be expressed at the beginning of the statement by providing a list of their qualifications and summary of relevant experience. All expert reports need to include a statement to the following effect: I have read and agree to be bound by the provisions of the Uniform Civil Procedure Rules 2005 applicable to expert evidence and the code of conduct set out in Schedule 7 of those rules. I have prepared this affidavit/expert report in accordance with those rules.

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References

Title Enforcement Guidelines for Councils and Appendices, particularly Appendix B Tips on conducting enforcement Investigations. Investigations Procedures Manual Operational draft Version 1.5

Author

Date

NSW Ombudsmans Office June 2002

Australian Government Department of Environment January 2006 and Heritage December 2005 October 2006

Enforcement Manual - CASA's enforcement strategies for Australian Government securing compliance with aviation Civil Aviation Authority safety standards Compliance and Enforcement Policy Code of Practice for Custody, Rights, Investigation, Management and Evidence (CRIME) NSW Food Authority

NSW Police

February 2008

Uniform Civil Procedure Rules NSW Government 2005

2005

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Appendix A

Types of Evidence

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There are many different types of evidence. A.1 Direct evidence Evidence of something that has been directly perceived by a witness through one or more of his or her five sensesfor example, has been seen, heard, smelled, felt or tasted. Direct evidence is given by the witnesses through written statements called affidavits and/or through oral testimony in court. A.2 Material evidence Material objects, other than documents, which are produced for inspection by a court, are commonly called material evidence. This, when available, is usually a reliable form of evidence because it generally does not require testimony or inference. Unless its genuineness is in dispute, the material speaks for itself. A.3 Documentary evidence There are two types of documentary evidence: Primary documentary evidence is the production of the original document itself. Secondary documentary evidence is the production of a copy of the original documentfor example, photocopy or certified copy, etc. It can generally only be produced after it has been shown to the court that the original is either lost or destroyed, or that it is impracticable to produce the original document. A document is anything in or on which information is recorded and includes photographs, an audio tape, a video tape, a DVD, a computer hard drive or diskette. A.4 Expert opinion Someones opinion is generally inadmissible as evidence. An exception to that rule is the opinion of an expert. Such evidence is only accepted when it is within the witnesss field of expertise. The witness must first prove to the satisfaction of the court that he or she is qualified in that field. A.5 a) Hearsay and circumstantial evidence Hearsay

Evidence given by a witness of what was said to him or her by another person who is not called as a witness, generally cannot be relied upon to prove the truth of what was said by that other person. Such evidence is often excluded on the grounds that it is hearsay evidence. Refer to the following case study for an example of how hearsay might arise during a typical investigation and how the rule would be applied.

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Case Study Tree clearing prosecution in the L&E Court under section 76A of the EP&A Act In her affidavit, the investigating Council officer gives the following evidence: During my inspection of the subject land on 18 June 2009, Bob Smith, the machinery operator said to me words to the following affect: Mr Jones contracted me to do the work. He told me he wanted these trees cleared to make way for his new development. The hearsay rule prevents this evidence from being admitted in order to prove that Mr Jones wanted the trees cleared to make way for his new development. The evidence would still be hearsay even if it was included in an affidavit deposed by Bob Smith. However, if the evidence of the Council officer was from Mr Jones himself, assuming that the appropriate warning was given at the commencement of the interview, it would probably be admissible on the basis that it was an admission. This is because the Evidence Act provides that the hearsay rule does not apply to evidence of an admission. For example: Mr Jones said words to the following effect: I wanted these trees cleared to make way for my new development. I am expecting the consent to come through any day. I asked Bob Smith to do the work because I knew he had machinery that could handle the job.

b)

Circumstantial

Evidence from which a fact may be inferred as a natural or probable conclusion. It is usually made up of a series of items that point to the same conclusion.

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Appendix B

Investigation Plan Template

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INVESTIGATION PLAN TEMPLATE

Background Information

Date: Investigating Officer(s): Property: Property Owner: Complainant/Informant Contact Details: Contact details for other persons of interest: File location:

Evidence Matrix

Allegation Observation

or Possible Offence

Elements Offence

of

the Avenues of enquiry Which techniques, resources, methods and ultimately, evidence, are required.

What is alleged to Which Act and have occurred? provisions may, potentially, apply. What have you observed?

What are the elements of that provision that need to be proven (Note: first row should always be time, date and place).

Legal Advice Insert any advice received from Councils legal team.

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Resource Needs

Personnel

Expertise required

Delegations required

Suitable Staff or Timeframes Contractor Name

Equipment
Item of Equipment Location/Source Do personnel require particular qualifications to calibrate or operate? Any other notes

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Evidence Gathering Action Plan

Task

Responsibility (staff)

Date due

Notes

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Appendix C

Powers of Entry

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Act

Provision

Purpose of entry

Type of premises

Pre-conditions to entry Giving to occupier of reasonable of notice of intention to enter the property

Notes

Companion Animals Act 1998

Section 69A

To seize or secure any companion animal that the officer is authorised to seize or secure or To determine whether there has been compliance with, or a contravention of, the Act or the regulations To exercise any functions under the Act

Excludes residential unless there is permission, or authority is given by search warrant (Section 69A)

See Division 1 of Part 7A (i.e. sections 69A69D) generally

EP&A Act 1979

Section 118A

Excludes residential unless there is permission, it is necessary for the purpose of inspecting work being carried out under a development consent, authority is given by search warrant, or it is necessary for inspecting the premises in order to issue a building certificate (Section 118J) Any premises that the authorised officer reasonably believes are used in connection with the handling of any food intended for sale or the sale of food, or any food transport vehicle or Any premises or

Council authorisation in writing for the purpose of allowing a council to exercise its functions, provided written notice of the intention to enter the premises is given to the owner or occupier

See Division 1A of Part 6 (i.e. sections 118A118N) generally

Food Act 2003

Section 37

Purposes of the Act

See left

See Division 1 of Part 4 (i.e. sections 37-43) generally

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Act

Provision

Purpose of entry

Type of premises

Pre-conditions to entry

Notes

food transport vehicle, in which the authorised officer reasonably believes that there are any records or documents that relate to the handling of any food intended for sale or the sale of food

Excludes residential except with consent, under the authority given by a search warrant or if that part of the premises is being used for the preparation or service of meals provided with paid accommodation Local Government Act 1993 Section 191 To exercise any functions under the Act Excludes residential unless there is permission, it is necessary for the purpose of inspecting work being carried out under an approval, or authority is given by search warrant (Section 200) Any Council authorisation in writing for the purpose of allowing a council to exercise its functions, provided written notice of the intention to enter the premises is given to the owner or occupier Limited to functions under Chapter 4 Environment protection notices (EPN) In the case of See Part 2 of Chapter 8 (i.e. sections 191-201) generally. See also Section 659 Production of certificate of authority to enter premises.

POEO Act 1997

Section 111

To exercise functions under Chapter 4 Environment protection notices For determining whether there has

Nil.

Section 196

Excludes any part

See Part 7.4 of Chapter 7 (i.e.

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Act

Provision

Purpose of entry

Type of premises

Pre-conditions to entry premises on which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out limited to any time during which those activities are being carried out there.

Notes

been compliance with or a contravention of the Act or the regulations or any environment protection licence, notice or requirement issued or made under the Act or For obtaining information or records for purposes connected with the administration of the Act or Generally for administering the Act and protecting the environment.

of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant

sections 196-202) generally

In the case of any premises at or from which the authorised officer reasonably suspects pollution has been, is being or is likely to be caused at any time.

In the case of any other premises at any reasonable time.

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Appendix D

Warning Script POEO Act & EP&A Act

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The text shown in [grey highlight] is indicative only and those parts can be tailored at the authorised officers discretion to suit each individual context. The rest of the script should be followed very closely.

Warnings Script for interviews conducted under section 203 of the POEO Act 1997 or section 118BA of the EP&A Act 1979 1. I have reasonable grounds to suspect that you have knowledge of matters in respect of a [pollution incident/building works/use/other] that [is occurring/occurred/is taking place] at [place], on [date]. 2. You are required by the [Protection of the Environment Operations Act 1997/Environmental Planning and Assessment Act 1979] to answer the following questions as part of our investigation of the [incident/works/use].1 Failure to answer any of my questions is an offence.2 3. It is an offence to provide information knowing that it is false or misleading.3 4. It is also an offence to wilfully delay or obstruct me in the course of my investigation of this [incident/matter].4 5. You are not excused from providing me with records or information or to answer a question on the ground that the record, information or answer might incriminate you or make you liable to a penalty.5 6. However, you may object to answering my questions or providing me with information on the ground that it may incriminate you. If you do this at the time that you answer the question, then that information or answer is not admissible in evidence against you personally in criminal proceedings unless those proceedings relate to the provisions of answers which are false or misleading.6 7. Do you understand? If a recorded interview, issue the warnings 1 to 7 above, and add: 8. This interview will be recorded. You will be provided with a copy of the recording [as soon as is practicable, i.e. either at the conclusion of the interview, or, we would suggest, within 5-7 working days]. Note: Since the provisions of Part 7.5 of the POEO Act and Division 1A the EP& A Act are almost identical in substance, the warnings required to be given under each Act are the same.

1 2 3

POEO Act, section 203(1) and EP&A Act, section 118BA(1) POEO Act, section 212(1) and EP&A Act, section 118N(1) POEO Act, section 211(2) and EP&A Act, section 118N(1)(c) 4 POEO Act, section.211(3) and EP&A Act, section 118N(1)(b) 5 POEO Act, section 212(2) and EP&A Act, section 122U(2) 6 POEO Act, section 212(3) and EP&A Act, section 122U(3)(a)

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Appendix E

Electronic Storage of Photographic Evidence

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Digital camera:
Reformat the memory card at the start of a new job. Keep a log for each photo taken, noting the GPS location, direction the camera is facing, brief description of photos content, time and photographers name. (see attachment A: Photo log) NEVER DELETE PHOTOS:-The memory card keeps a log of all the photos taken and there will be a recorded gap in the sequence of photographic evidence. On return to the office, down load the photos and save to disk. Save a working copy to your network drive. Place the disk in an envelope and seal using a completed Master CD Seal sticker. Place the master copy CD in the filing cabinet under the appropriate master number. Delete the images from the camera and reformat the memory card. Update case management system to indicate where CD is stored.

Printing images:
Avoid waste do not print up single copies of images until you are sure that you need them for a specific purpose. Printing will be dependant upon your resolution requirements. For working purposes printing onto standard A4 paper using a colour printer will usually suffice. Only print onto photographic paper where it is necessary for presentation purposes. Four regular size photos can be printed on each sheet of photo paper and then cut to size. Only use a full sheet photo where it is necessary. For all briefs of evidence, print up a thumb nail numbered overview of all the photos. For Court purposes, exhibit the master CD to your statement/affidavit. Print a selection of images for use in your statement. Mark the location and direction of each numbered photograph on a site plan Use the attached presentation form.

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Photographic log

Investigation: Day: Date: Photographer:

Photo

Time 24hr

Location (from where you took the photo)

Direction (Bearing)

Subject (what it is)

Page:

of

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TITLE

Date: Photographer: Description:

Time:

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